Science Policy South African Journal of Science 104, September/October 2008 355 Historically, a lack of bioprospecting South Africa’s bioprospecting, legislation and associated regulations has permitted almost unconstrained access to access and benefit-sharing South African bioresources, with materials being harvested, sometimes in destruc- legislation: current realities, future tively excessive quantities, and being exported to research and development complications, and a proposed nodes abroad, for innovative value addi- tion, and off-shore financial benefit. The alternative consequence has been that the country as a whole, including traditional knowledge (TK)-holding communities and bio- a,c Neil R. Croucha,b*, Errol Douwes , resource providers, have not benefited Maureen M. Wolfsond, Gideon F. Smithd,e and equitably from the commercial and other gains derived from local bioresource c Trevor J. Edwards commercialization. Records, fifteen years ago, reveal that the Dutch flower industry lobally, many nations are legislating the world, being the smallest but most earned almost R300 million annually access for bioprospecting purposes to diverse floristic kingdom known. With from the sale of freesias alone.7 The genus Gtheir biological and genetic resources. over 19 500 indigenous plant species in Freesia is near-endemic to South Africa. South Africa, as a megadiverse country, has about 350 plant families, South Africa Similarly, large areas are under cultivation, recently regulated bioprospecting, access and benefit-sharing activities in accordance indeed has the richest temperate flora in with Gladiolus, Zantedeschia and Nerine 8 with its obligations as a ratifying party to the world. In addition, three global plants in Holland and New Zealand. the Convention on Biological Diversity. The hotspots of biodiversity are currently Revenue generated from sales of Pelargo- context and process of key legislation devel- recognized within the country: the CFR, nium cultivars, derived from South African opments in South Africa are discussed, prior the Succulent Karoo, and Maputaland– species and protected by Plant Breeders’ to our presenting a critique which emphasizes Pondoland–Albany.4 Regional biotic ele- Rights in the Netherlands, Germany and the practical impacts, especially on drug dis- ments other than plants are similarly Belgium approximates US$6 billion annu- covery, arising from the newly introduced diverse, exemplified by the fungi which ally,with no associated revenue returns to systems. Probable effects on existing bio- 8 resource-based industries within South have recently been estimated conserva- South Africa. 5 Africa, together with current as well as future tively at 200 000 species and coastline Several notable industries have devel- 6 bioprospecting activities, are assessed. marine life at over 10 000 taxa. The rich oped within South Africa,9 and have Several practicalities of bioprospecting meth- floristic and geological diversity7 of the already brought direct and indirect bene- ods have been poorly accommodated, result- country supports immensely rich and fits to its citizens: these include the cut ing in the development of impracticable and diverse faunas, both invertebrate and flower [primarily fynbos species (proteas, unnecessarily restrictive regulations. We con- 6 vertebrate. Although the potential for leucospermums and the like)],10 aloe clude that though well-intentioned, these new commercial product development 11,12 non-facilitative regulations have placed a (principally Aloe ferox Mill.), marula dead hand on value-addition to South Africa’s from South African bioresources is high, (Sclerocarya birrea (A. Rich.) Hochst. subsp. biodiversity. Bioprospectors will find it diffi- such that South Africa has been, and caffra (Sond.) Kokwaro), honeybush tea cult to continue with broad-scale screening remains, a country of significant interest (Cyclopia spp.), and rooibos tea (Aspalathus programmes given their user insecurity, legal to bioprospectors, it may never prove to linearis (Burm. f.) R. Dahlgren)13 industries, uncertainty, and cost-inefficiency. Existing be the land of ‘green gold’. Especially amongst others. Recently introduced bioresource-based industries within South with respect to the quest for new pharma- bioprospecting legislation14 and regula- Africa face potential closure in view of onerous co-active materials, it should be remem- tions15 in South Africa have sought to bioprospecting permit application require- bered that behind every commercially ments. An alternative, practical, CBD-com- redress disparities in the sharing of bene- pliant model on which to base urgently successful bioproduct lies substantial fits derived from bioprospecting. They required legislative reforms is presented. expenditure in the form of extensive reflect i) national sovereignty over access screening programmes that will have to bioresources, ii) a recognition of tradi- Introduction discarded literally thousands of commer- tional knowledge and related intellectual South Africa, considered one of 17 cially non-exploitable candidates before property rights (IPR), iii) a need to share megadiverse countries (nations that discovering a single commercially ex- benefits equitably with stakeholders, and collectively account for 70% of global ploitable product. 1 iv) a need to use bioresources sustainably. biodiversity), holds the Cape Floristic Each of these elements serves to align na- Region (CFR),2,3 one of the six most signifi- Abbreviations: ABS, access and benefit-sharing; BSA, tional law with the objectives of the Con- cant concentrations of plant diversity in benefit-sharing agreement; CBD, Convention on Biologi- vention on Biological Diversity (CBD).16 a cal Diversity, the Rio Convention; CITES, Convention on Ethnobotany Unit, South African National Biodiversity the Trade in Endangered Species; DEAT, Department of Broadly speaking, this approach to devel- Institute, P.O.Box 52099, Berea Road 4007, South Africa. b oping access and benefit-sharing (ABS) School of Chemistry, University of KwaZulu-Natal, Environmental Affairs and Tourism; DST, Department of Durban 4041, South Africa. Science and Technology; DTI, Department of Trade and legislation is supported increasingly by c School of Biological and Conservation Sciences, Univer- Industry;IP,intellectual property;IPR, intellectual property countries both rich and poor in bio- sity of KwaZulu-Natal, Private Bag X01, Scottsville 3209, rights; MOU, memorandum of understanding; MTA, mate- South Africa. resources. What is critical is that the im- d rial transfer agreement; NEMBA, National Environmental Research and Scientific Services, South African National Management Biodiversity Act (Act 10 of 2004); PIC, prior Biodiversity Institute, Private Bag X101, Pretoria 0001, plementation of such regulations should South Africa. informed consent; TK, traditional knowledge; TOPS, lead to a positive outcome. An emerging eSchweickerdt Herbarium, Department of Botany, Univer- Threatened or Protected Species; TRIPS, Agreement on sity of Pretoria, Pretoria 0002. Trade-Related Aspects of Intellectual Property Rights; economy such as South Africa can ill *Author for correspondence. E-mail: [email protected] WTO, World Trade Organisation. afford to restrain its own bioprospecting 356 South African Journal of Science 104, September/October 2008 Science Policy activities through unreasonable and cost- South Africa, particularly relating to plant contribute knowledge regarding the use prohibitive regulations. One threatened use.22 That value is indeed inherent in this of bioresources should benefit where programme is the Novel Drug Develop- local knowledge base is exemplified by such knowledge (intellectual property)29 ment Platform (NDDP) (www.sahealthinfo. the study of Fourie and co-workers,23 who is the basis of successful new product org/noveldrug/), a broad-based consor- reported that approximately 81% of 300 developments.30 The difficult issues of tium of South African researchers from evaluated medicinal plants show biologi- determining traditional knowledge own- clinical and scientific disciplines based in cal activity in a range of target assays. ership may have given rise to the reported local parastatals, universities and science Similarly, considerable success has been reduction in bioprospecting activities at councils. The objective of NDDP research achieved when an ethno-directed ap- several large pharmaceutical compa- has been to develop, from ethnomedi- proach is adopted for the search for new nies.31 Risks faced by companies include cinal plants, novel drugs that are effec- antimalarial drugs from South African financial losses, legal conflicts over IPR tive against serious and comparatively plants. Extracts of 49% of all the species ownership, and negative publicity linked neglected diseases of the developing assayed exhibited promising antiplas- to perceived biopiracy. The historic ab- ≤ 24 world: malaria, tuberculosis and diabetes modial activity (IC50 10 µg/ml). These sence of formalized means of sharing mellitus. The Department of Science and regional experiences substantiate the economic benefits derived from the com- Technology (DST), through the agency of notion that bioresources used within local mercial exploitation of biodiversity with the National Research Foundation (NRF), traditional medicine systems constitute landowners and/or custodians of tradi- has provided Innovation Funds to sup- good starting points for drug develop- tional knowledge has led to